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Avoid the worry of an invalid divorce

If you and your partner have gone through the heartbreak of realising that your relationship isn’t going to work, dealt with all the paper work relating to divorce, made the decisions about who gets what, and sorted out arrangements for your children, the last thing you want to discover is that for some reason or other, things haven’t been done correctly and you have an invalid divorce.

Why would it matter that my divorce is invalid?

If your divorce is declared invalid for some reason, it means that you are technically still married to the partner you thought you had divorced. Even more concerning perhaps, if you married again, your new marriage would be invalid. You will also lose the protection that ‘being married’ offers – for example if your partner dies without a will, or the relationship comes to an end. You will be a ‘cohabitee’ – and although the law may be slowly changing, cohabitees currently have very little protection in law.

How could my divorce be invalid?

In November last year, several divorces were declared invalid by Sir James Munby, President of the Family Division of the Courts. 21 divorces organised by one, now disgraced, barrister, were declared void after it was discovered that the barrister had filled out forms, used false addresses and forged signatures.
Obviously, this is an extreme case – but in his guidance, Sir James has highlighted other scenarios which could arise in which a divorce was invalid. He has issued guidance relating to time limits that are contained in the Matrimonial Causes Act 1973 and which could accidentally be breached making your divorce invalid. Anyone who then re-married  in these circumstances would technically be committing bigamy, although someone who genuinely believed they were divorced would be able to argue this in defence of any prosecution.

Which divorce time limits are problematic?

The rules around divorce include a number of thresholds which require certain lengths of time to elapse.

  • You must have been married for at least a year before you can present a petition for divorce to the court (section 3 MCA 1973).

As far as different grounds for divorce are concerned, it is possible to obtain a divorce

  • On grounds of desertion, if the ‘respondent’ in the divorce has deserted the partner asking for the divorce (the ‘petitioner’) for 2 years (section 1(2)(c) MCA 1973)
  • If you have lived apart for 2 years and both consent to the divorce (section 1(2)(d) MCA 1973)
  • If you have lived apart for 5 years (section 1(2)(e) MCA 1973)

Sir James is concerned that a number of divorces have been granted where one or other of these time limits has been breached or not met.

Interim Guidance from Sir James Munby on defective divorce petitions/decrees

There is already established case law relating to a divorce petition presented too early – before the marriage has lasted for a year. In Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, [1990] FCR 336, the judge decided that the subsequent divorce is ‘null and void’, as is the decree absolute which would normally finalise the divorce. The judge also decided in that case that it wasn’t possible to make things right by amending the petition, and that ‘discretionary relief’ was not available. Any subsequent marriage would be equally invalid.
In his guidance, issued on 23rd April 2018, Sir James indicates that the same would be true if one of the time limits in section 1 (2)(c)(d) or (e) had not been respected. He has asked the Queen’s Procter to investigate the situation and will issue further guidance in due course. In the meantime, Sir James has set out the action to be taken for the time being, if a divorce has been granted when one of these time limits has not been respected. In some cases, it may be possible to amend the petition. In other cases, if a new petition is necessary, there will be no issue fee, and a new decree nisi should be granted ‘as soon as possible’.

Getting it right in the future

In his guidance, Sir James refers to the online divorce project and his hope that the software involved will mean that these kinds of mistakes will no longer be able to occur. After an initial pilot in 2017, the online divorce project has been extended and is being trialled with people able to submit forms, send documents and make payments through the new system. When fully rolled out, the online divorce should make the whole process easier in straightforward cases where people don’t want to involve a solicitor.

Make sure you don’t create an invalid divorce now

The easiest way to avoid making this kind of error in your divorce petition until the online system is up and running, is to take advice from an experienced family lawyer. Many people are taking steps to organise their own divorces without legal support, but this can be problematic. It’s worth taking legal advice to make sure you are complying with all the requirements. Solicitors can also assist in more complex areas such as finances and arrangements with children.
You can read Sir James’ interim guidance here and if you’d like to speak with one of our expert family lawyers about your own situation, get in touch.